Who was the second choice?

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I have finally hit upon a misdeed by the Bush administration so outrageous, so appalling, so egregious, I am calling for a bipartisan commission with subpoena power to investigate: Who told the president to nominate Harriet Miers? The commission should also be charged with getting an answer to this question: Who was his second choice?

Things are so bad, the best option for Karl Rove now would be to get himself indicted. Then at least he'd have a colorable claim to having no involvement in the Miers nomination.

This past week's Miers update is:

(1) Miers is a good bowler (New York Times, Oct. 16, 2005, front page  Joshua B. Bolten, director of the Office of Management and Budget: "'She is a very good bowler"), which, in all honesty, is the most impressive thing I've heard about Miers so far;

(2) In 1989, she supported a ban on abortion except to save the life of the mother.

From the beginning of this nightmare, I have taken it as a given that Miers will vote to overturn Roe v. Wade. I assume that's why Bush nominated her. (It certainly wasn't her resume.) Pity no one told him there are scads of highly qualified judicial nominees who would also have voted against Roe. Wasn't it Harriet Miers' job to tell him that? Hey, wait a minute ...

But without a conservative theory of constitutional interpretation, Miers will lay the groundwork for a million more Roes. We're told she has terrific "common sense." Common sense is the last thing you want in a judge! The maxim "Hard cases make bad law" could be expanded to "Hard cases being decided by judges with 'common sense' make unfathomably bad law."

It was "common sense" to allow married couples to buy contraception in Connecticut. That was a decision any randomly selected group of nine good bowlers might well have concurred with on the grounds that, "Well, it's just common sense, isn't it?"

But when the Supreme Court used common sense  rather than the text of the Constitution  to strike down Connecticut's law banning contraception, it opened the door to the Supreme Court rewriting all manner of state laws. By creating a nonspecific "right to privacy," Griswold v. Connecticut led like night into day to the famed "constitutional right" to stick a fork in a baby's head.

This isn't rank speculation about where "common sense" devoid of constitutional theory gets you: Miers told Sen. Arlen Specter she would have voted with the majority in Griswold.

(Miers also told Sen. Patrick Leahy  in front of witnesses  that her favorite justice was "Warren," leaving people wondering whether she meant former Chief Justice Earl Warren, memorialized in "Impeach Warren" billboards across America, or former Chief Justice Warren Burger, another mediocrity praised for his "common sense" who voted for Roe v. Wade and was laughed at by Rehnquist clerks like John Roberts for his lack of ability.)

The sickness of what liberals have done to America is that so many citizens  even conservative citizens  seem to believe the job of a Supreme Court justice entails nothing more than "voting" on public policy issues. The White House considers it relevant to tell us Miers' religious beliefs, her hobbies, her hopes and dreams. She's a good bowler! A stickler for detail! Great dancer! Makes her own clothes!

That's nice for her, but what we're really in the market for is a constitutional scholar who can forcefully say, "No  that's not my job."

We've been waiting 30 years to end the lunacy of nine demigods on the Supreme Court deciding every burning social issue of the day for us, loyal subjects in a judicial theocracy. We don't want someone who will decide those issues for us  but decide them "our" way. If we did, a White House bureaucrat with good horse sense might be just the ticket.

Admittedly, there isn't much that's more important than ending the abortion holocaust in America. (Abortionist casualties: 7; Unborn casualties 30 million.) But there is one thing. That is democracy.

Democracy sometimes leads to silly laws such as the one that prohibited married couples from buying contraception in Connecticut. But allowing Americans to vote has never led to crèches being torn down across America. It's never led to prayer being purged from every public school in the nation. It's never led to gay marriage. It's never led to returning slaves who had escaped to free states to their slavemasters. And it's never led to 30 million dead babies.

We've gone from a representative democracy to a monarchy, and the most appalling thing is  even conservatives just hope like the dickens the next king is a good one.

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